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Decision No. 17,092

Appeal of K.M., on behalf of her child O.M., from action of the Board of Education of the Island Park Union Free School District regarding residency and transportation.

Decision No. 17,092

(June 1, 2017)

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Island Park Union Free School District (“respondent”) that her child (“the student”) is not eligible to receive transportation to a child care location pursuant to the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The record reflects that the student became homeless prior to the start of the 2016-2017 school year.  The district determined that the student was homeless as defined by McKinney-Vento and enrolled her in its universal prekindergarten program.

Petitioner subsequently requested that the district provide transportation to and from a child care location located outside of respondent’s district.  In a letter dated July 29, 2016, the district’s homeless liaison stated that the district would not offer transportation to or from the child care location due to its location outside of respondent’s district.  The homeless liaison further asserted that the district does not offer transportation to any district residents under these circumstances.  However, the homeless liaison indicated that the district would provide transportation to and from petitioner’s temporary housing location and the student’s universal prekindergarten program.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 26, 2016.

Petitioner requests that the district provide transportation to and from the child care location.  Petitioner asserts that, due to her work schedule, she is unable to ensure that she is home each day to put her children on the bus and meet them when they exit the bus.

Respondent contends that it met its obligations under federal and State law by offering transportation between petitioner’s temporary residence and the student’s school program, and that no legal authority requires it to transport the student to an out-of-district child care location.

The appeal must be dismissed.  McKinney-Vento and Education Law §3209(4) do not provide a basis for petitioner’s requested relief under these circumstances.[1]  42 USC §11432(g)(1)(J)(iii) requires districts to provide transportation to and from the school of origin, and Education Law §3209(4)(c) requires that transportation be provided to and from a “child's temporary housing location and the school of origin.”[2]  Under 42 USC §11432(g)(4), the transportation services provided to the homeless child must be “comparable to services offered to other students in the school selected.”  Education Law §3209(4)(d) further states that “where a homeless child designates the school district of current location as the district the child will attend … such school district shall provide transportation to such child on the same basis as a resident student.”[3]

Here, the district has offered to provide transportation to and from petitioner’s temporary housing location and the student’s school which, in this case, is a universal prekindergarten program.  Transportation to and from a universal prekindergarten program may be funded from grant funds, but is not required (see Education Law §3602-e[12][l]).  If a board of education elects to provide transportation for students attending a universal prekindergarten program beyond the transportation funded by such program, any “such transportation shall be offered equally to all children in like circumstances” residing in the district (Education Law §3635[1][g]).  The July 29, 2016 letter from respondent’s homeless liaison indicates that the district does not provide transportation to and from out-of-district child care locations to any district resident.[4]  Therefore, petitioner is requesting transportation services beyond the services which are available to other students attending the universal prekindergarten program, while respondent’s obligation is to provide comparable transportation services.  Therefore, while I am sympathetic to petitioner’s situation, I find that respondent has fulfilled its obligation to provide transportation to this homeless child by offering transportation between the temporary housing location and the universal prekindergarten program the student attends, and the petition must be dismissed.




[1] Effective October 1, 2016, McKinney-Vento was amended by the Every Student Succeeds Act, (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][A]).  The circumstances which gave rise to this appeal occurred prior to October 1, 2016.  As a result, the requirements of McKinney-Vento and the conforming provisions of Education Law §3209 and Commissioner’s regulation §100.2(x) in effect prior to October 1, 2016, are applicable to this appeal.


[2] Effective April 20, 2017, the above - quoted language was amended by Part C of Chapter 56 of the Laws of 2017 to conform to the language of McKinney-Vento.  These amendments do not alter the district’s legal obligations with respect to the issues discussed in this appeal.


[3] Respondent indicates that petitioner and the student currently reside in a motel which is located within the district’s geographical boundaries.



[4] Respondent cites to Education Law §3635(1)(e), which the Commissioner has determined only authorizes districts to provide transportation to and from before- and/or after-school school child care programs located within the school district (see Appeal of J.M.-E., 52 Ed Dept Rep, Decision No. 16,394; Appeal of Wells, 49 id. 443, Decision No. 16,076). By its terms, however, that provision does not apply under these circumstances because it applies to children attending kindergarten through grade eight.